Efforts to push for the prosecution of Kenya Ports Authority bosses, including Managing Director Daniel Manduku, have been dealt s major blow after the High Court in Mombasa gave orders stopping any arrest or prosecution of Manduku until his application is heard and determined.
Justice Eric Ogolla, of the Constitutional and Human Rights division in Mombasa, directed that Manduku’s application against Director of Public Prosecutions, the Directorate of Criminal Investigations and the Ethics and Anti-Corruption Commission be heard on 17 December 2019.
Through lawyers James Orengo, Nelson Havi and Julie Soweto, Manduku wants the court to stop Noordin Hajji from prosecuting him over alleged corruption and mismanagement of KSh2.7 billion for revitalisation of Kisumu Port and Makongeni Goodshed, among other projects on the recommendation of the EACC and DCI.
He says the investigations by the state agencies have been not just malicious and in bad faith but conducted in disregard of the rule of law and in a manner that suggests Manduku was guilty without giving him the chance to state his case.
He says all the projects being cited as the basis of investigations were all initiated by the national government implemented through a multi-agancy model and therefore it was vindictive to pick on KPA managers.
“The third respondent in undertaking their investigations failed to appreciate that the conceptualisation, planning, budgeting and implementation […] was undertaken by the joint technical committee. The role of the authority was to implement the decisions of the committee,” Manduku says in his sworn affidavit.
Manduku’s maintains he was only implementing ministerial and cabinet directives in line with Executive Orders of the president. For instance, he clarifies that the KPA paid KSh662 million to Kenya National Highways Authority to undertake emergency works for Kisumu Port access upon direction by the Cabinet Secretary for Transport.
“On 15th August 2019, the Cabinet Secretary […] wrote to me seeking funds from the authority to undertake emergency works […] emphasizing in the letter that the Kisumu Port was undergoing revitalisation pursuant to an Executive Order.
“In accordance with the above directive, on 4th November 2029, the said Cabinet Secretary wrote to the Caibent Secretary National Treasury and Planning, seeking approval for the Kenya Ports Authority to fund KeNHA to undertake emergency works for Kisumu Port Access, in the terms that he had directed the authority.”
The conservatory order issued on Monday gave Manduku a free bond and stopped DPP from arresting him until the case is heard and determined.
The decision has sent cartels that have been pushing for Manduku’s removal into panic as they now see their course against the MD for cancelling tenders, worth more than KSh20 billion, lost.
Among the cancelled tenders were the construction of a new KPA headquarters at a cost of KSh7.6 billion, purchase of boats at KSh2.5 billion and land for KSh3 billion, among others.
“The respondents investigations are capricious, irrational and reckless and demonstrate […] pursuit of an ulterior motive or purpose, unconnected with Kenya’s criminal justice system for the preponderant aim of using the law as a cudgel and weaponising it for the purpose of my removal from the position of Managing Director of the Kenya Ports Authority, unprocedurally and unlawfully,” submits Manduku.
The smitten cartels have now engaged a section of media and bloggers to pile pressure on the DPP to prosecute Manduku. After their failed narrative of corruption, the bitter tenderpreneurs have attempted to draw Deputy President William Ruto into the story by suggesting Manduku had bankrolled Kibra by-elections as an ally of the DP but it fell flat.
They (cartels) have now picked up the name of the first family and Orange Democratic Movement leader Raila Odinga to sustain their press that may have been the last straw with the court order in place.
The DPP had prepared a total of 30 counts against Manduku, who has cited six grounds of his petition and constitutional violations against him if the DPP was to press charges against him, further accusing the state agencies of “engaging in constant and incessant press wars against the petitioner.”
The grounds for his petition are anchored on human dignity, fair administrative action, equality and non-discrimnation and fair hearing. Other grounds include breach’s of article (157) of the Constitution and loss of reputation.
“The second and third respondents have violated the petitioner’s right to human dignity and to have that dignity respected as provided in article 29 of the Constitution of Kenya by […] destroying self-esteem and self-worth of the petitioner by vilifying and portraying the petitioner as a criminal, a thief and corrupt public official,” read the court papers.
“The second respondent has denied the petitioner the right to fair administrative action contrary to article 47 of the Constitution of Kenya in that he has usurped the authority and mandate of the Ethics and Anti-Corruption Crimes Act 2003…
“The third respondent has conducted proceedings, to wit investigations, which are fraught with procedural unfairness as the third respondent has not given the petitioner a reasonable opportunity to respond to the allegations, accusations and statements made against him […] and has denied the petitioner a reasonable opportunity to state his case.”
